Human Rights Watch Response to UK Ministry of Justice Consultation

March 8, 2022

Introduction

1. Human Rights Watch considers the Ministry of Justice’s (MOJ) consultation on ‘reform’ to the Human Rights Act 1998 (HRA) to be a misguided, misleading exercise. The United Kingdom (UK) Government has failed to show that there is a pressing need to make changes to the Human Rights Act. If enacted, the proposed changes would have a widespread, negative impact on people in the UK who depend on the HRA to ensure their rights are protected.
2. In addition to being unnecessary and undesirable for rights protections at home, the proposed legislative reform is likely to have a negative spill-over effect in terms of the UK Government’s international reputation and ability to advocate for rights-respecting laws and policies on an international and domestic level. The proposals, if realized, are likely to be perceived by governments in the Council of Europe region and beyond that engage in widespread human rights abuses as a signal that the UK considers reducing rights protections as acceptable.
3. We understand that a wide range of domestic civil society organizations will submit detailed answers to each of the consultation questions and accordingly, our response takes a narrower focus. We offer some general observations about the consultation exercise, followed by a brief response on a limited number of the consultation questions below.

About Human Rights Watch

4. Human Rights Watch is an independent, non-profit, nongovernmental human rights organization. Each year, Human Rights Watch publishes more than 100 reports and briefings on human rights conditions in more than 90 countries around the world. We use the findings of our investigations to advocate for changes in policy and practice that promote human rights and justice around the world. Our full mission statement and financial details can be found here.
5. Human Rights Watch publishes an annual summary of human rights developments in the United Kingdom, as part of our World Report, and we regularly publish in-depth research reports into human rights issues in the UK, and engage in human rights advocacy in the country on domestic and international issues. During the past four years alone, we have published detailed reports on a variety of human rights issues including social care assessments and the rights of older people; cuts to social security support, food banks and the right to food; the impact of automated social security calculations on people living in poverty; the right to food of children from low-income families during Covid-19 pandemic-related school closures; and the impact of authorities’ overreliance on temporary accommodation on children’s rights to housing, health, and education.

A flawed, misguided, and inadequately accessible consultation exercise

6. The exercise to ‘reform’ the HRA and replace it with a Bill of Rights is a misguided and retrograde move for rights protection in the UK and internationally. The evidence put forward to justify the consultation does not point to a genuine problem with the Human Rights Act or its implementation, and the subsequent framing of questions for consultation is often misleading or rests on a fundamental mischaracterization of the way the HRA currently operates.
7. Some of the proposals in the consultation paper, and the framing of problems, depart quite significantly from the analysis and recommendations of the Independent Human Rights Act Review (IHRAR), the expert panel tasked by the government, which concluded its work in October 2021. The IHRAR made recommendations which in its view would improve the operation of the HRA, but did not recommend replacing the HRA with a Bill of Rights. The Chair of the IHRAR, Sir Peter Gross, gave evidence to the Justice Committee in February 2022 stating that he did not consider the consultation paper a response to the IHRAR’s report. Responding to parliamentarians, Sir Peter Gross noted areas in which the MOJ’s current proposals on Sections 2 and 3 of the HRA vary from the independent expert panel’s recommendations without clear explanation or justification. Sir Peter said that these variations “risked opening up a more significant gap” between rights enforced in domestic courts and rights enforced at the European Court of Human Rights than the IHRAR’s proposals had done, and could also bring legal “uncertainty.”
8. The consultation exercise has to date failed to ensure the inclusion of many people with disabilities.
   • The delay in publishing an easy-to-read version of the consultation; the inadequacy of the “easy-to-read” text eventually published with less than two weeks until the deadline for response, the failure to provide supports to people with disabilities to be able to submit their responses in a format that is accessible for them; and the continuing failure to accommodate people with disabilities who may need to be consulted in a non-text format, including audio, braille, British Sign Language, and easy-read images, all run counter to the basic principle of non-discrimination in the European Convention on Human Rights.
   • These actions and omissions may also fall foul of anti-discrimination provisions in the UK’s Equality Act 2010, including the MOJ’s public sector equality duty obligations. Some people with disabilities whose lives will be directly affected by changes in legal protections of their human rights have effectively been, and continue to be, left out of the consultation exercise as a result of the MOJ’s failure to take the necessary steps on inclusion.
   • The approach of the MOJ in this consultation exercise falls well short of the guidelines provided by the Cabinet Office and the Disability Unit for making communication accessible using various formats.
   • Videoconferences arranged by the MOJ with civil society organizations during the initial consultation period have not included any wording in the invitations offering accommodations or adjustments for people with disabilities to participate fully.
   • Appendix 3 to the consultation on potential equalities impacts fails to make any mention of how the consultation will be made accessible to people with disabilities, because it foresees impact assessment as a future stage while ignoring the inequality built into the consultation process itself. This runs counter to a key tenet of universal design – equitable use. People with disabilities should be provided with the opportunity to engage in all stages of the consultation process; they should not be segregated or stigmatized and placed into latter stages of the impact assessment process.
9. As of March 6, 2022 (with two days remaining until the submission deadline), the MOJ’s consultation website continued to include an update from February 24, the date on which an “easy-to-read” version was first posted (and which appears to have since been removed from the MOJ’s website):

“We are publishing a word-only Easy Read accessible version for those who need a version to respond to the consultation. We apologise that it is a text-only version and are working with suppliers to update this.”

10. On March 7, 2022, just over 24 hours before the submission deadline, the MOJ updated its website with an easy-to-read version with pictures and an audio version on YouTube, with the following note explaining that the MOJ would grant a limited six week extension to people who made contact and said they had been affected by the lack of accessibility during the initial consultation period:

“We will be allowing for extensions until 19 April only for those who would be assisted by an Easy Read or audio version in order to respond. This includes organisations who solely or greatly represent the interests of those who would be assisted by an audio or Easy Read version in order to respond. Please contact HRAreform@justice.gov.uk in order to request an extension.”

11. People with disabilities who require an easy-to-read with pictures format or an audio version in order to enable their participation in the process, will now have half the time others have had to respond to the consultation.
12. It is still unclear whether substantive responses can be submitted in non-text format. There is currently no available method to request an extension in non-text format.

Foreign Policy Implications

13. The consultation exercise does not formally include a question on the impact of ‘reforming’ the HRA on human rights protections internationally and the role of the UK Government in promoting human rights through its foreign policy. As an organization focused on worldwide protection of human rights, and reporting on more than 90 countries, Human Rights Watch considers this a serious gap in the consultation.
    • While the international impact of the proposals may fall outside the remit of the MOJ, they are relevant to the interests of the UK Government as a whole and ought to be taken into account. This omission is concerning, especially as the Lord Chancellor refers in his foreword to the Command Paper to “the UK’s tradition of human rights leadership abroad.”
    • The proposed legislative changes (in Questions 1 & 2 of the consultation), which aim expressly to reduce the extent to which European Court of Human Rights jurisprudence binds domestic courts, could indirectly impact respect for human rights in other countries.
    • Within the Council of Europe, there are member states which are serial violators of the European Convention on Human Rights, including Russia and Turkey. Limiting the extent to which UK Courts must take account of European Court of Human Rights jurisprudence, removing mention of the role of the Committee of Ministers, and diluting protections provided for in the European Convention on Human Rights could encourage other Council of Europe states to follow suit, with grave impact for their populations. In particular, it could be used as a justification by states to regularly flout the decisions of the Court and the Committee of Ministers and to dilute domestic international human rights protections.
    • The UK’s continued failure to implement certain Strasbourg judgments has already sent a negative signal to other member states that disregard Strasbourg judgments and fail to comply with article 46 (Binding force and execution of judgments) of the European Convention on Human Rights, as the then-Commissioner for Human Rights noted in 2015.
    • Repealing or weakening the domestic law provisions that give effect to the European Convention on Human Rights as a minimum standard and thereby acting inconsistently with its international obligations will weaken the UK Government’s legitimacy in the Council of Europe and other international bodies and mechanisms in which the UK participates, including the UN Human Rights Council. It undermines the credibility of the Foreign, Commonwealth and Development Office (FCDO) to be able to encourage other states to comply with their human rights obligations and to call them out for failing to do so. As a result, the UK is likely to lose global standing on human rights in both bilateral and multilateral settings, where the FCDO plays a crucial role.

Repealing Section 2 of the HRA

14. Question 1 and the related proposed legislative amendments set out in Appendix 2 relate to repealing Section 2 of the HRA.
    • The proposals to change the requirement from the current situation in which UK courts “must take into account” Strasbourg jurisprudence and decisions of the Committee of Ministers on implementation of judgments, to setting out explicitly in both the proposed options that “the [domestic] court or tribunal is not required to follow or apply any judgment or other decision of the European Court of Human Rights,” if realized, and followed by judges, it could lead to a significant weakening of human rights protection by ignoring the comprehensive jurisprudence of the Court.
    • The proposed changes also remove any mention of the Committee of Ministers of the Council of Europe, which is the body tasked with ensuring implementation of Strasbourg judgments, and would therefore weaken the level of human rights oversight in the United Kingdom and potentially in other countries.

Permission stages: “Significant disadvantage” and “overriding public importance” tests

15. Questions 8 and 9 relate to introducing a requirement at a permission stage of a judicial challenge to a public authority that it is failing to respect its human rights obligations that the person bringing the challenge has suffered “a significant disadvantage,” or alternately that the case is of “overriding public importance,” in order for the case to proceed to be heard.
    • The ability to enforce human rights in the UK domestic courts is one of the key benefits of the Human Rights Act, because it gives people whose rights are affected by unlawful decisions by public authorities the ability to challenge them in order to protect their rights, and if successful to obtain a remedy.
    • The proposal will create new barriers in accessing justice and remedies for breaches of human rights, beyond existing admissibility processes already in place. There is a risk that courts at the request of the public authority will apply a high threshold for showing a significant disadvantage or overriding public importance. In addition, without clear guidance on these tests, there is scope for arbitrary or inconsistent application.
    • There is no clear case for introducing these tests, and the barriers introducing them would pose to already marginalized groups in accessing remedies would be high.

“Genuine” human rights abuses

16. The proposals outlined in Question 10 focus on the notion of “genuine human rights abuses” and amending Section 8 of the HRA. Introducing the concept of “genuine human rights abuses” and “genuine injustice” (see section below), and the corollary implication that some human rights violations and injustices people suffer and for which they seek remedies are not “genuine,” risks denying people whose human rights are negatively affected from being able to vindicate their claims, access justice or an effective remedy. A framework in which the government can decide which human rights are “genuine” is open to the arbitrary exercise in ways that undermine people’s rights in the UK. It also increases the risk that other states in the Council of Europe or elsewhere will seek to emulate the UK’s approach to deem certain human rights abuses as not “genuine.”

Positive obligations and public authorities

17. Question 11 and the related discussion in the consultation paper about positive obligations are misleading and based on false assumptions. The government’s consultation paper offers scant evidence or data to substantiate its claim that positive obligations create uncertainty for government and public authorities because they reduce its ability to take action or because of fear of litigation. Positive obligations on state authorities are an essential component of every human right – for example the prohibition on torture requires state authorities to prevent, investigate, and prosecute those responsible for torture.
18. Courts in the UK are already cautious in interpreting and implementing positive obligations and show a high level of deference to the legislature. Amending human rights legislation to avoid prospective litigation does not improve human rights protections or social or economic policy. The government appears to be concerned about the constraints that apply as a consequence of the duties imposed by international human rights law on authorities to protect people’s rights when exercising their powers, which the UK Government and other public authorities should promote as part of rights-respecting decision making, rather than seek to bypass or obstruct.
19. Human Rights Watch also does not see a case, for the same reasons, for any new exceptions to be made for public authorities in Question 21. The existing exception under HRA Section 6(2) already permits public authorities latitude to act in a manner incompatible with international human rights obligations where primary legislation requires them to act in a way that violates those rights. There is no reason to increase the scope for public authorities to act in ways that do not comply with the UK’s international human rights obligations.

Devolution

20. The consultation paper’s treatment of devolution and the relevant Scottish and Northern Irish law and constitutional arrangements lacks attention to detail.
21. Human Rights Watch recommends a significantly more detailed consultation exercise to consider the compatibility of the proposed changes to the HRA with the terms of devolution, and in the case of Northern Ireland, consistency with the UK’s international treaty obligations under the 1998 Good Friday/Belfast Agreement, prior to taking any further action.

Extraterritorial application

22. Question 22 creates a problem where none exists, and appears to be a response to repeated government attempts to remove the protection of human rights law from those affected by its actions overseas, or to claim that human rights law no longer applies during an armed conflict. International human rights law and the law of armed conflict are clear that human rights law continues to apply during armed conflicts (protecting members of the armed forces themselves) and the UK government should be accountable for the acts of its armed forces and officials wherever in the world these take place, especially in situations where they have clear control over individuals, such as military occupations and detention. In particular, failure to protect the human rights of detainees from the moment they are detained leads to abuse, which can lead to war crimes that put UK forces at risk of arrest and prosecution globally. The most appropriate approach would be a clear and public statement from the government that it will ensure that all human rights law, international criminal law and the law of armed conflict (during conflicts and occupation) apply to its forces and officials, including when they are responsible for detention.

The conduct of claimants

23. Question 27 proposes writing into a Bill of Rights an explicit mention of the responsibilities or conduct of people (“claimants”) using the courts to seek a remedy for a qualified right (e.g. article 8, the right to private and family life), including not only their conduct in relation to the circumstances surrounding the claim, but also their past conduct.
24. This proposal is of particular concern because it risks contributing to a wider public discourse in which people’s rights warrant protection only insofar as they adhere to standards of behaviour deemed acceptable by the state, and that some people are seen as deserving of human rights, and others are not, both of which weaken the universal nature of human rights protections. It is likely to result in discrimination in the protection of rights. Although the proposal envisions taking claimant conduct into account in relation to damages and remedies, the proposal itself opens a dangerous path to precluding people from accessing a remedy for harms they have suffered based on their conduct. It also potentially opens the door to future legislative reform to allow such a calculus around conduct and remedies to creep into claims relating to unqualified rights (e.g. article 5, the right to liberty and security) or absolute rights (e.g. article 3, the prohibition of torture).

Publication of responses

25. We hope the responses above are of use, and we welcome the opportunity to feed into future exercises to ensure improved human rights protections in the United Kingdom.
26. Human Rights Watch has no objection to the Ministry of Justice publishing our consultation response as part of the consultation process. We also encourage the Ministry of Justice – in the interests of ensuring a transparent and inclusive consultation – to publish responses received in full, alongside the promised summary of responses.

This document is an edited version of the original consultation response submitted to the Ministry of Justice. It has been amended to remove contact details of Human Rights Watch staff and to ensure consistency with house style.